Obama at the Gun Rack

The good, the bad and the (probably) unconstitutional.

Updated Jan. 16, 2013 8:18 p.m. ET

President Obama isn't one to shy away from policy ambition, so it was telling on Thursday that he thought it necessary to caution that "there is no law or set of laws that can prevent every senseless act of violence completely" when he wheeled out his vast gun-control agenda. Some of the new laws he desires are reasonable and may do modest good. Others are counterproductive or unworkable in practice or legally dubious, sometimes all three.

After Newtown, the most important policy goal ought to be keeping firearms away from the mentally unstable and other people who pose a danger to society. There Mr. Obama moved the needle by appealing for better mental health care, even if it seemed like something of an afterthought. The gun-control lobby believes mass shootings and the broader matter of U.S. gun violence (which are not the same problem) can be solved by regulating firearms alone.

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Mr. Obama's raft of suggestions was wise to focus on mentally troubled young people. Disorders of the mind and perhaps of brain chemistry usually manifest in adolescence or early adulthood, and the focus of a reformed system should be identifying them as sickness emerges. The Administration wants to fund a $75 million project to support innovative state programs to identify high-risk kids and train more mental health professionals specialized in treating youths.

A good place to start is Colorado, which is showing more restraint than Washington on guns and more wisdom on mental health. States that develop so-called assisted outpatient treatment laws and programs are showing progress in mitigating violence among the mentally ill.

It was also useful for Mr. Obama to mention the federal health privacy law known by the acronym Hipaa, even if he claimed that there was "confusion" about what it requires. There is no such confusion. Hipaa's onerous mandates often prevent health-care providers and college counsellors from communicating with each other and law enforcement about troubled patients, which Congress would be wise to relax and reform.

Sadly none of this will generate the same political frisson as Mr. Obama's call for Congress to reinstate the federal "assault weapons" ban that expired in 2004 and also prohibit high-capacity gun magazines that can hold more than 10 rounds. These are political gestures—but anyhow, over to you, Mary Landrieu, Max Baucus, Mark Begich, Mark Pryor, Mark Warner, Kay Hagan and Tim Johnson, the red-state Democratic Senators up for re-election in 2014.

The conceptual problem begins with the elastic definition of assault weapons. Mr. Obama certainly didn't define it. The ban that was imposed in 1994 mostly regulated cosmetic features like folding stocks, pistol grips and flash suppressors and produced no measurable shift in gun crime, according to federal researchers.

Semi-automatic rifles have been on the U.S. commercial market since 1903 (from Winchester and Remington) and are in broad use among law-abiding citizens for self-defense, target shooting and sport. They accounted for about 40% of rifle sales in 2010. The AR-15, one of the guns Adam Lanza used in Newtown, is the most popular model in America—5.5% of all U.S. guns manufactured in 2007—and there are about two million in circulation.

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Associated Press

These numbers bear on whether such a ban is constitutional. The Supreme Court has twice recognized an individual right to bear arms in the Second Amendment, notably for guns "in common use at the time." The landmark 2008 Heller case involved semi-automatic handguns, though a D.C. Circuit Court of Appeals panel upheld a Washington ban on semi-automatic rifles in 2011 by a 2-to-1 vote.

However, a dissent in the 2011 case from Judge Brett Kavanaugh makes a compelling argument that the "text, history and tradition" and logic of Heller apply to assault rifles as well. It makes no sense to find semi-automatic handguns legal but not semi-automatic rifles, especially given that handguns are used to perpetrate far more crimes than rifles—87% of all gun crimes between 1993 and 2001, in fact.

The government is empowered to ban "dangerous and unusual weapons," like machine guns and surface-to-air missiles, but it also needs to explain how any of this will prevent the next Newtown. Are the feds going to round up weapons and melt them down? The 1994 ban applied only to new rifles, and if this one does as well, how will it make a difference?

Mr. Obama also endorsed universal background checks, including for the 40% of gun sales between private parties. Here too there is a practical problem. Often this exemption is called the "gun show loophole" but most of this activity takes place in homes, over the phone, or via online classified ads. Would the feds impose new data collection and regulations on all gun buyers and sellers? Supposedly Washington can't be trusted to surveil Americans suspected of terrorism, but now it will do so for all gun buyers?

Mr. Obama told Americans to ask "hard questions" about gun violence in the immediate aftermath of the Newtown shootings, but on the evidence Wednesday he didn't spend a lot of time asking any of himself. Above all he seems to relish a political showdown with the National Rifle Association no matter the policy consequences, much as New York Governor Andrew Cuomo rushed his own gun ban through Albany this week.

Mr. Obama's package is a place for Congress to start, but only if it plans on taking a rather lengthy trip.

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